The U.S. Justice Department is urging a Washington federal appeals court to uphold the conviction and sentence against Jack Abramoff associate Michael Scanlon, an early cooperator for the government in a wide-ranging public corruption scandal.
The 20-month prison sentence imposed against Scanlon, who pleaded guilty in November 2005 to a multi-pronged conspiracy, is appropriate and should not be touched, DOJ lawyers said in court papers filed Sunday.
Scanlon is fighting in the U.S. Court of Appeals for the D.C. Circuit to convince the court to throw out one part of his plea agreement that he contends cannot stand following the U.S. Supreme Court’s ruling last year in Skilling v. U.S. that narrowed the scope of honest-services prosecutions.
Ropes & Gray partner Stephen Braga, representing Scanlon in the appeals court, said in June the honest services portion of Scanlon’s plea is unconstitutional and should be voided. Braga said that part of the deal was responsible for the more than $20 million Scanlon owes in restitution.
“The issue before this court is a narrow, but important one,” Braga said. “It is narrow because it involves the interpretation of a Supreme Court decision that is less than a year old and, hence, has little interpretive guidance in its wake to date. It is important because it involves the scope of a federal criminal statute and, thus, has important ramifications for individual liberty.”
Scanlon recently abandoned a legal challenge to the restitution in which he argued Greenberg Traurig is not entitled to compensation. Lawyers for Greenberg Traurig said in that dispute that Scanlon was unfairly trying to keep proceeds of a fraud scheme that involved Native American tribes.
Scanlon, the Justice Department said in its brief filed over the weekend, has sought full credit for his role as a cooperator while trying simultaneously to get out of any responsibility for fraud.
Judge Ellen Segal Huvelle of Washington federal district court rejected Scanlon’s request to strike the honest-services part of his plea agreement. In February, Huvelle sentenced Scanlon to 20 months in prison and to three years of supervised release.
As part of the plea deal, prosecutors agreed not to file additional charges against Scanlon and the government agreed to ask for a reduced prison sentence to award him for his extensive cooperation, said Demetra Lambros of the Criminal Division’s appellate section.
Prosecutors said Scanlon’s request to modify his plea agreement, if he were successful, would also mean he would be freed from restitution, Lambros said. Justice lawyers said Scanlon’s demand that the fraud part of his plea agreement be thrown out “is wrong from the start.”
“A plea agreement is a contract, and after a deal is struck, one side may not unilaterally try to alter the terms of the bargain,” Lambros said. “That, however, is what Scanlon is trying to do here: he wants to keep all he gained in the negotiations but take back a central portion of what he gave—and, in the end, avoid all responsibility for his fraud on the Indian tribes.”
DOJ lawyers said if Scanlon’s plea agreement is tainted, he should be forced to return to negotiations, or go to trial, rather than be allowed to receive “a one-sided sentencing windfall.”